A policy that provides employees an option of responding to a call probably does not require the company to pay the employees for choosing to be available. For example, a business that puts out the word of a hot prospect to several salespeople, with the referral going to the first employee to call-in is likely an unpaid standby situation.

On the other hand, a policy that requires a designated worker to stay within specific geographic limits, to maintain open telephone or text message contact during specific hours and to arrive at the worksite (or otherwise begin working) within a limited amount of time after receiving employer’s request is almost certainly a paid on-call arrangement.

The above worker asked whether his employer must pay when it was his “belief” that he had to be within a certain area and had to answer his phone if called.

From the employee’s perspective, he should promptly and responsibly request written clarification of the company’s policy, thus either confirming or dispelling his impression that he is subject to mandatory response.

Similarly, from the employer’s perspective, it is important to have clear written policy, one way or the other. An employer who doesn’t pay for stand-by but, as in the above worker’s case, vaguely announces “negative consequences” for failing to respond to a call, risks a later government or court finding that it has failed to pay for required stand-by time.

The above worker also asked if he could be “punished” for failing to respond. As he describes an unpaid on-call arrangement, then in theory the company could not – and should not – reprimand or otherwise discipline an employee who does not answer a call to come to work.

On the other hand, a business with a clear paid, mandatory on-call policy can legitimately take adverse action against the individual who fails to comply. Certainly, the policy should spell out the range of consequences possible. On the degree of discipline a company should exercise in the case of a violation, the answer ultimately lies in the experience and (hopefully good) judgment of management.

Law Offices of Timothy Bowles
August 12, 2013

As you are almost certainly aware, California employers with 50 or more employees or independent contractors must provide mandatory sexual harassment prevention and investigation training to its supervisors every two years.

Current regulations tighten trainer qualifications and impose heightened interactivity requirements, including questions that assess learning, skill-building activities and numerous hypothetical scenarios about harassment with follow-up discussion questions.

We are offering an updated in-house, two-plus hour seminar, at your location, that will fulfill these legal requirements. With your supervisors better trained on harassment basics, this session will help you safeguard your company against lawsuits while assisting you to create better employee relations.

Conducted by one of our experienced attorneys, our seminar includes a live lecture, printed materials, PowerPoint presentation, video scenarios, quizzes and a new session-ending investigatory scenario in which all participants can apply and demonstrate their knowledge of the fundamentals in this critical field. We will also provide certificates of attendance as documentation for your records.

The seminar topics include:

• Types of harassment and what makes supervisors personally liable
• Steps owners and supervisors should take to prevent company liability
• What constitutes harassment under current state and federal laws
• Policies employers can impose to limit employee relationships
• Printed materials, a lecture and audio-visual presentation
• Role playing scenarios to demonstrate skills and knowledge

By scheduled appointment, we can provide the required interactive seminar at your place of business. The fee is $1,500 per seminar for groups of up to 30 supervisors, with reasonable additional charges for larger groups. The required seminar is easy to set up.

Or if you have just a few employees who need this training, our Public Seminar is also available.

August 1, 2013

It has been said that death and taxes are the only two sure things in life but man, those people ought to cheer up. After all, you don’t even get to all that “death is inevitable” drivel without love (hopefully), sex (rock & roll optional), pregnancy and childhood. California supports the pregnancy part with some of the most protective workplace leave laws in the nation.

California’s Pregnancy Disability Leave (PDL) law requires any employer with four or more persons on payroll to provide a worker up to four months of unpaid leave for her pregnancy, delivery and newborn care. Pregnant employees have those rights even if they must go out on such leave within days of taking on new employment. These protections extend to full time and part-time workers alike.

Among other features:

July 29, 2013

The California Court of Appeal has decided that the state’s workplace anti-discrimination law did not protect a former Los Angeles Police Department volunteer police reserve officer. Estrada v. City of Los Angeles, published July 24, 2013. However, the result would likely be the opposite for a private business in similar circumstances.

Mr. Estrada, although termed under city rules a “volunteer” for his work with LAPD and although he specifically served without compensation, asserted that he should be considered an “employee” under the California Fair Employment and Housing Act (FEHA) since the City of Los Angeles paid to cover him for workers’ compensation insurance. Mr. Estrada alleged the City of Los Angeles discriminated against him in violation of FEHA due to his physical disability.

If a California business has five or more employees, FEHA protects against any such worker’s termination due to race, national origin, gender, religion, physical or mental disability or any other classification protected from discrimination by that law.

The FEHA statute specifies that “employees” are entitled to such protections but does not actually define what that word means. Mr. Estrada, although termed under city rules a “volunteer” for his work with LAPD, asserted that he should be considered a FEHA “employee” since the City of Los Angeles paid to cover him for workers’ compensation insurance.

Mr. Estrada had a seemingly strong legal position from prior published California appeals court decisions. Those cases observed that where an employer chooses to cover a volunteer under workers’ compensation, FEHA protections should extend to that person as well.

However, the court concluded that the City of Los Angeles had a countervailing special right, granted by the California Constitution, to regulate and control its internal affairs, including its role as an employer. The city’s rules designated persons appointed to the police reserve as “volunteer workers only and … not deemed … employees of the City …” except for workers’ compensation benefits. The court concluded it could not interfere with the city’s power to define “employee” and “volunteer” in any manner it chose.

Thus, Mr. Estrada only lost his case due to special constitutional rights of “charter cities,” including Los Angeles, as governmental bodies. On the other hand, the decision indicates that a private business with five or more persons on payroll and which chooses to cover its “volunteers” for workers compensation will also be obligated to comply with FEHA for those persons as well.

This Estrada decision is also a reminder to private businesses to ensure they are only classifying those individuals as volunteers who are truly providing some service or assistance without contemplation or receipt of remuneration. A court or agency may well conclude that a person labeled “volunteer” is actually an employee if he/she is actually obtaining or expecting to obtain material benefits from the work. The Estrada Court observed: “Even substantial indirect compensation can satisfy the threshold requirement of remuneration for purposes of employee status under [the anti-discrimination law]. If not direct salary, substantial benefits which are not merely incidental to the activity performed, such as health insurance, vacation or sick pay, are indicia of employment status.” (Emphasis in original.)

For more perspective and help on the distinction between employees and volunteers or on FEHA’s application to California employers, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Law Offices of Timothy Bowles
July 24, 2013

The California Court of Appeal has decided that the state’s workplace anti-discrimination law did not protect a former Los Angeles Police Department volunteer police reserve officer. Estrada v. City of Los Angeles, published July 24, 2013. However, the result would likely be the opposite for a private business in similar circumstances.

Mr. Estrada, although termed under city rules a “volunteer” for his work with LAPD and although he specifically served without compensation, asserted that he should be considered an “employee” under the California Fair Employment and Housing Act (FEHA) since the City of Los Angeles paid to cover him for workers’ compensation insurance. Mr. Estrada alleged the City of Los Angeles discriminated against him in violation of FEHA due to his physical disability.

If a California business has five or more employees, FEHA protects against any such worker’s termination due to race, national origin, gender, religion, physical or mental disability or any other classification protected from discrimination by that law.

The FEHA statute specifies that “employees” are entitled to such protections but does not actually define what that word means. Mr. Estrada, although termed under city rules a “volunteer” for his work with LAPD, asserted that he should be considered a FEHA “employee” since the City of Los Angeles paid to cover him for workers’ compensation insurance.

Mr. Estrada had a seemingly strong legal position from prior published California appeals court decisions. Those cases observed that where an employer chooses to cover a volunteer under workers’ compensation, FEHA protections should extend to that person as well.

However, the court concluded that the City of Los Angeles had a countervailing special right, granted by the California Constitution, to regulate and control its internal affairs, including its role as an employer. The city’s rules designated persons appointed to the police reserve as “volunteer workers only and … not deemed … employees of the City …” except for workers’ compensation benefits. The court concluded it could not interfere with the city’s power to define “employee” and “volunteer” in any manner it chose.

Thus, Mr. Estrada only lost his case due to special constitutional rights of “charter cities,” including Los Angeles, as governmental bodies. On the other hand, the decision indicates that a private business with five or more persons on payroll and which chooses to cover its “volunteers” for workers compensation will also be obligated to comply with FEHA for those persons as well.

This Estrada decision is also a reminder to private businesses to ensure they are only classifying those individuals as volunteers who are truly providing some service or assistance without contemplation or receipt of remuneration. A court or agency may well conclude that a person labeled “volunteer” is actually an employee if he/she is actually obtaining or expecting to obtain material benefits from the work. The Estrada Court observed: “Even substantial indirect compensation can satisfy the threshold requirement of remuneration for purposes of employee status under [the anti-discrimination law]. If not direct salary, substantial benefits which are not merely incidental to the activity performed, such as health insurance, vacation or sick pay, are indicia of employment status.” (Emphasis in original.)

For more perspective and help on the distinction between employees and volunteers or on FEHA’s application to California employers, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Law Offices of Timothy Bowles
July 24, 2013

Super-Sized Supervisor Definition

Under federal and California law, employer liability for workplace harassment can depend entirely on the legal definition of a “supervisor.” The U.S. Supreme Court has recently clarified that definition under Title VII of the Civil Rights Act of 1964 in Vance v. Ball State University (June 24, 2013).

Narrow Definition for “Supervisor” under Federal Law: Indiana’s BSU employed catering assistant Maetta Vance, an African-American female. She sued employer BSU alleging her white female supervisor Saundra Davis created a racially hostile work environment in violation of Title VII. That federal law makes it an unlawful employment practice for an employer to discriminate – and by extension, to harass – a worker because of his/her race, color, religion, sex, or national origin. Vance alleged Davis would glare at her, slam pots and pans in her vicinity and “intimidate” her. She claimed Davis would often give her “weird” looks and would stand there with her catering cart “smiling.”

The case focused whether BSU could be held automatically (vicariously) liable even if BSU had had no notice of Davis’s actions and thus no opportunity to investigate and halt any unlawful conduct. If Davis had been Vance’s supervisor for purposes of Title VII, then BSU could be vicariously liable for such harassment. If, however, Davis was Vance’s co-worker, then BSU would only be liable if it negligently controlled working conditions (e.g., if the university had some notice of the alleged hostile environment and yet had done nothing effective to stop it).

As the lower court held BSU had responded reasonably to the incidents of which it was aware, BSU’s liability in this case depended solely on whether Davis was a supervisor or merely a co-worker.

Before this Vance decision, the federal courts defined whether an alleged harasser was a “supervisor” under Title VII in either of two ways. Some courts held an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the alleged victim. Other courts adhered to the Equal Employment Opportunity Commission’s (EEOC) more open-ended approach which ties supervisor status to the ability to exercise “significant discretion” over the alleged victim’s daily work.

BSU argued it could not be held vicariously liable for the alleged harassment because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Vance argued Davis was a supervisor because Davis had the authority to control Vance’s daily activities and evaluate her performance, thus falling within the EEOC’s open-ended definition of a supervisor.

The U.S. Supreme Court agreed with BSU in holding an employee is a “supervisor” under Title VII only if the employer empowers that person to take “tangible employment actions” against the other, e.g., authority to hire, fire, demote, promote, transfer, or discipline. Thus, BSU was not liable with respect to Davis’ alleged conduct.

California’s Broader Definition of Supervisor is Likely Unaffected: Although this is an important decision affecting workplace harassment cases brought under Title VII, it will likely have little to no impact on employment discrimination cases brought under California’s Fair Employment and Housing Act (FEHA).

FEHA specifically defines “supervisor” more broadly as any person having the authority to hire, transfer, discharge other employees, or the responsibility to direct them, adjust their grievances, or effective to effectively recommend tangible employment actions. Thus, under FEHA, a person such as Davis tasked with the responsibility to direct an employee’s daily duties (i.e. a team leader) is a “supervisor” even if lacking direct authority to hire, fire, promote or transfer the employee.

Minimally, all American employers no matter where located should train their supervisors to recognize and prevent harassing conduct and closely monitor co-worker interactions to ensure a safe, harassment-free working environment.

For help to employers on how to structure, administer or enforce proper policies and handbooks to avoid expensive lawsuits, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Law Offices of Timothy Bowles
June 24, 2013

Under federal and California law, employer liability for workplace harassment can depend entirely on the legal definition of a “supervisor.” The U.S. Supreme Court has recently clarified that definition under Title VII of the Civil Rights Act of 1964 in Vance v. Ball State University (June 24, 2013).

Narrow Definition for “Supervisor” under Federal Law: Indiana’s BSU employed catering assistant Maetta Vance, an African-American female. She sued employer BSU alleging her white female supervisor Saundra Davis created a racially hostile work environment in violation of Title VII. That federal law makes it an unlawful employment practice for an employer to discriminate – and by extension, to harass – a worker because of his/her race, color, religion, sex, or national origin. Vance alleged Davis would glare at her, slam pots and pans in her vicinity and “intimidate” her. She claimed Davis would often give her “weird” looks and would stand there with her catering cart “smiling.”

The case focused whether BSU could be held automatically (vicariously) liable even if BSU had had no notice of Davis’s actions and thus no opportunity to investigate and halt any unlawful conduct. If Davis had been Vance’s supervisor for purposes of Title VII, then BSU could be vicariously liable for such harassment. If, however, Davis was Vance’s co-worker, then BSU would only be liable if it negligently controlled working conditions (e.g., if the university had some notice of the alleged hostile environment and yet had done nothing effective to stop it).

As the lower court held BSU had responded reasonably to the incidents of which it was aware, BSU’s liability in this case depended solely on whether Davis was a supervisor or merely a co-worker.

Before this Vance decision, the federal courts defined whether an alleged harasser was a “supervisor” under Title VII in either of two ways. Some courts held an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the alleged victim. Other courts adhered to the Equal Employment Opportunity Commission’s (EEOC) more open-ended approach which ties supervisor status to the ability to exercise “significant discretion” over the alleged victim’s daily work.

BSU argued it could not be held vicariously liable for the alleged harassment because Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. Vance argued Davis was a supervisor because Davis had the authority to control Vance’s daily activities and evaluate her performance, thus falling within the EEOC’s open-ended definition of a supervisor.

The U.S. Supreme Court agreed with BSU in holding an employee is a “supervisor” under Title VII only if the employer empowers that person to take “tangible employment actions” against the other, e.g., authority to hire, fire, demote, promote, transfer, or discipline. Thus, BSU was not liable with respect to Davis’ alleged conduct.

California’s Broader Definition of Supervisor is Likely Unaffected: Although this is an important decision affecting workplace harassment cases brought under Title VII, it will likely have little to no impact on employment discrimination cases brought under California’s Fair Employment and Housing Act (FEHA).

FEHA specifically defines “supervisor” more broadly as any person having the authority to hire, transfer, discharge other employees, or the responsibility to direct them, adjust their grievances, or effective to effectively recommend tangible employment actions. Thus, under FEHA, a person such as Davis tasked with the responsibility to direct an employee’s daily duties (i.e. a team leader) is a “supervisor” even if lacking direct authority to hire, fire, promote or transfer the employee.

Minimally, all American employers no matter where located should train their supervisors to recognize and prevent harassing conduct and closely monitor co-worker interactions to ensure a safe, harassment-free working environment.

For help to employers on how to structure, administer or enforce proper policies and handbooks to avoid expensive lawsuits, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Law Offices of Timothy Bowles
June 24, 2013

San Diego Mayor Bob Filner resigns today in the wake of sexual harassment allegations from some 18 women over recent weeks. These include a former communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse. The allegations include groping, headlocks, choke holds, blocking women from leaving his office, using visits from lobbyists to bargain for sexual favors, and preying on women at an event for sexually abused military personnel.

Michelle Taylor, the licensed vocational nurse, has been one of the most vocal accusers. At an August 6, 2013 news conference, flanked by her attorney Gloria Allred, Ms. Tyler claimed she met with the mayor on June 11, 2013 for his help with the Veterans Administration for a disabled former Marine injured while serving in Iraq. According to Ms. Tyler, Mayor Filner agreed to help so long as she agreed to have sex with him in return. She recalled the mayor began rubbing her arm while stating, “Relax, you are incredible. I will help your veteran. I want you to go out to dinner with me and spend time with me.” He allegedly asked if she was married and announced he would really like to be seen in public with her. Ms. Tyler asserted Mayor Filner also asked if he could call her and stated, “If we were not here in my office I would like to kiss you.”

At that conference, Ms. Allred stated, “Many people ask for help from their elected officials. To use his power as the Mayor of the City of San Diego to satisfy his sexual needs is clearly improper and should not be tolerated. This case is extremely serious as it involves conduct by Mayor Filner in the performance of his duties that clearly shows his abuse of power and his penchant to use his office to satisfy his sexual needs.”

It is illegal in California for a workplace supervisor to request sexual favors in exchange for job security, benefits or advancement (“quid pro quo,” Latin for “this for that” or “something for something”) Examples are a supervisor giving an employee benefits conditioned on sexual favors, offering to promote a subordinate if he/she will date the supervisor, or promising a pay raise in exchange for sex, threatening to fire or demote an individual if she or he refuses to sleep with the boss.

A California employer is strictly liable for its supervisor’s or agent’s quid pro quo damages an employee incurs as a result of a supervisor or agent’s quid pro quo sexual harassment. California employers are also required to take all reasonable steps to prevent any kind of harassment from occurring, including a written policies and supervisor and worker instruction. California Government Code 12950.1 requires any employer with 50 or more total employees and/or associated independent contractors to formally train its supervisors within six months of hiring or promotion and then every other year on sexual harassment prevention, investigation and resolution.

For employer assistance on harassment prevention and handling issues, including provision of the supervisor training required under Government Code 12950.1, contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Related Articles:

“Embarrassing, Disruptive and Expensive to Resolve, Harassment in the Workplace is Illegal”

“Employer Liability for Workplace Harassment”

“Avoiding Workplace Hell”

“Fair and Balanced – Harassment and Discrimination Workplace Investigations”

“When It’s Time to Contact an Employment Lawyer”

June 11, 2013

San Diego Mayor Bob Filner resigns today in the wake of sexual harassment allegations from some 18 women over recent weeks. These include a former communications director, his former deputy campaign manager, a retired admiral, the president of the San Diego Port Tenants Association, a dean at San Diego State University, the director of government and military education at San Diego City College, a school psychologist, and a vocational nurse. The allegations include groping, headlocks, choke holds, blocking women from leaving his office, using visits from lobbyists to bargain for sexual favors, and preying on women at an event for sexually abused military personnel.

Michelle Taylor, the licensed vocational nurse, has been one of the most vocal accusers. At an August 6, 2013 news conference, flanked by her attorney Gloria Allred, Ms. Tyler claimed she met with the mayor on June 11, 2013 for his help with the Veterans Administration for a disabled former Marine injured while serving in Iraq. According to Ms. Tyler, Mayor Filner agreed to help so long as she agreed to have sex with him in return. She recalled the mayor began rubbing her arm while stating, “Relax, you are incredible. I will help your veteran. I want you to go out to dinner with me and spend time with me.” He allegedly asked if she was married and announced he would really like to be seen in public with her. Ms. Tyler asserted Mayor Filner also asked if he could call her and stated, “If we were not here in my office I would like to kiss you.”

At that conference, Ms. Allred stated, “Many people ask for help from their elected officials. To use his power as the Mayor of the City of San Diego to satisfy his sexual needs is clearly improper and should not be tolerated. This case is extremely serious as it involves conduct by Mayor Filner in the performance of his duties that clearly shows his abuse of power and his penchant to use his office to satisfy his sexual needs.”

It is illegal in California for a workplace supervisor to request sexual favors in exchange for job security, benefits or advancement (“quid pro quo,” Latin for “this for that” or “something for something”) Examples are a supervisor giving an employee benefits conditioned on sexual favors, offering to promote a subordinate if he/she will date the supervisor, or promising a pay raise in exchange for sex, threatening to fire or demote an individual if she or he refuses to sleep with the boss.

A California employer is strictly liable for its supervisor’s or agent’s quid pro quo damages an employee incurs as a result of a supervisor or agent’s quid pro quo sexual harassment. California employers are also required to take all reasonable steps to prevent any kind of harassment from occurring, including a written policies and supervisor and worker instruction. California Government Code 12950.1 requires any employer with 50 or more total employees and/or associated independent contractors to formally train its supervisors within six months of hiring or promotion and then every other year on sexual harassment prevention, investigation and resolution.

For employer assistance on harassment prevention and handling issues, including provision of the supervisor training required under Government Code 12950.1, contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Related Articles:

“Embarrassing, Disruptive and Expensive to Resolve, Harassment in the Workplace is Illegal”

“Employer Liability for Workplace Harassment”

“Avoiding Workplace Hell”

“Fair and Balanced – Harassment and Discrimination Workplace Investigations”

“When It’s Time to Contact an Employment Lawyer”

June 11, 2013